Tillerson Channels Reagan on South China Sea

On January 11, Secretary of State nominee Rex Tillerson testified in his hearing before the Senate Foreign Relations Committee that perhaps the United States should deny China access to its artificial islands in the South China Sea. Tillerson is correct that in recent years the United States has forgotten basic lessons of deterrence when it comes to China and the South China Sea. In Tillerson’s words, China will “keep pushing the envelope” until the United States sends a “clear signal that first the island-building stops and second your access to those islands is also not going to be allowed.”

Tillerson’s remarks were met with “confusion, disbelief, and war-like threats” from Chinese analysts. Malcolm Davis, a senior analyst at the Australian Strategic Policy Institute in Canberra, said that Tillerson’s statement was “the sort of off-the-cuff remark akin to a tweet that pours fuel on the fire and maybe makes things worse.” Davis added, “Short of going to war with China, there is nothing the Americans can do.” Likewise, Zhu Feng, executive director of the China Center for Collaborative Studies of the South China Sea at Nanjing University, said there is “no legal basis” for the United States to “block China’s access to these constructed islands.” Others were left asking exactly how the United States might go about trying to block China.

Yet Tillerson’s idea merely channels President Reagan’s 1983 Oceans Policy, something I suggested during my testimony before the House Sea Power and Forces Projection subcommittee in September of last year (and on which this post draws). The United States lawfully can and should challenge China’s rights to access its artificial islands as a lawful countermeasure in international law to induce China to comply with its obligations of the Law of the Sea Convention and customary international law.

This idea is not original to Tillerson or me, but rather was foreshadowed by President Reagan in 1983. In the aftermath of the U.S. decision not to ratify UNCLOS in 1982, President Reagan issued a U.S. Statement on Oceans Policy. That policy has stood the test of time and remains in effect today. While objecting to the 1982 framework for seabed mining in Part XI (which was restructured in 1994 to accommodate President Reagan’s objections), the President announced three decisions “to promote and protect the oceans interests of the United States in a manner consistent” with what he called the “fair and balanced” rules reflected in UNCLOS.

Reagan’s policy is important to reproduce here because it contains a caveat that has been lost on recent U.S. administrations but appears to have some mileage with the incoming Trump administration. On March 10, 1983, Reagan stated:

[T]he United States is prepared to accept and act in accordance with the balance of interests relating to traditional uses of the oceans – such as navigation and overflight. In this respect, the United States will recognize the rights of other states in the waters off their coasts, as reflected in [UNCLOS], so long as the rights and freedoms of the United States and others are recognized by such coastal states (emphasis added).

Reagan’s policy reflects a classic quid pro quo and the basis of positive law: the United States agrees to respect other states maritime claims only if they respect U.S. claims. This statement expresses a willingness to invoke legal countermeasures against states that are not in compliance with UNCLOS by withholding recognition of their lawful claims until such time as they recognize valid U.S. claims. The Reagan policy was never renounced, although in practice it has fallen into desuetude. Reagan’s caveat is an important, yet unutilized tool of international law available to all states.

The United States should withdraw recognition of China’s rights under UNCLOS to navigate freely throughout the South China Sea to the extent that Beijing does not respect reciprocal rights in international law. But instead, we have unwisely afforded China full rights to operate freely on the oceans, including in their territorial seas in innocent passage and EEZs without restriction, while China dangerously impedes and hampers foreign warships and military aircraft operating in areas under its claimed sovereignty or jurisdiction.

In September 2015, for example, a flotilla of five People's Liberation Army (PLA) Navy warships transited through the Bering Sea north of the Aleutian Islands, and then headed south to conduct innocent passage between two of the Aleutian Islands. A Pentagon spokesperson stated that the operation “was a legal transit of U.S. territorial seas conducted in accordance with [UNCLOS].” Similarly, Chinese warships have conducted military activities, including intelligence collection, in the U.S. EEZ near Guam and Hawaii, and conduct military activities in the EEZ of India, Japan, and Australia as well.

China’s interference with U.S. warships and military aircraft in the South China Sea constitute a breach of its legal obligations under UNCLOS and customary international law, and are internationally wrongful acts within the law of state responsibility. In such law, injured states are entitled to take lawful countermeasures to induce compliance, such as withholding recognition of China’s right to freedom of navigation and overflight in the South China Sea to block access to its islands. This is not a “tit-for-tat” or demand for reciprocal treatment, but rather a lawful measure short of coercion or the use of force to induce compliance on the part of a state that has breached its legal obligations.

Countermeasures flow from the customary international law of state responsibility, as reflected in the International Law Commission’s Articles on State Responsibility. States bear responsibility for acts that are attributable to them under international law, and which constitute a breach of international obligations under either treaty law or customary law. The injured state may invoke countermeasures against the responsible state to induce compliance. The present situation involving China presents a classic model of countermeasures, and countermeasures must be proportionate, not affect the rights of third states, and not involve violation of preemptory norms, such as basic standards of human rights.

The United States should act true to its 1983 Oceans Policy of observing and respecting foreign maritime claims only to the extent that other coastal states respect U.S. rights at sea. In particular, since China does not respect UNCLOS rules governing innocent passage of warships in its territorial sea or high seas freedoms of navigation and overflight of military vessels and aircraft in its EEZ, the United States should withhold observation of those rights from Chinese military ships and aircraft until such time as China conforms its policy to the law. Such action constitutes lawful countermeasures in international law, and serves an instrumental function to produce compliance by China.

The United States would also be entitled to use force in self-defense if China were to try to impede the application of these countermeasures, although this scenario does not have to end in a war. How can the U.S. implement these countermeasures? Simply intercept and communicate with PLA Navy ships and aircraft operating in the area that the United States is withholding recognition of their high seas freedoms to induce China’s compliance with international law. U.S. warships and aircraft can aggressively intercept and disrupt Chinese operations, much as China already does. Wouldn’t this raise tension in the region? It surely would, but anything other than acquiescence to China’s unlawful claims will have to take on additional risk in the short term. China may become sufficiently weary of fending off assertive U.S. naval forces that harry its activities that it may contribute to an agreement down the road to reach a square deal that protects everyone’s rights.

In the meantime, Tillerson was correct that lawful countermeasures could have a real and even dispositive impact on Chinese maritime behavior. The United States could regain the diplomatic initiative if it treated Chinese naval and air forces in a like manner as a temporary measure to induce China to restore freedom of navigation and overflight to foreign warships and military aircraft in its EEZ. This doesn’t eliminate China’s artificial islands, but it could restore the sense of freedom of navigation that China has upended.

James Kraska is Howard S. Levie Professor of International Law at the Stockton Center for the Study of International Law, U.S. Naval War College, Distinguished Fellow at the Law of the Sea Institute, University of California at Berkeley School of Law, and Senior Fellow, Center for Oceans Law and Policy, University of Virginia School of Law.